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MINE FAITH AS DEFENSE AGAINST LIABILITY FOR INJURY-Aetitus v. Spring Valley Coal Company, Supreme Court of Illinois, 92 Northeastern Reporter, page 579.— This was an action by Charles Aetitus to recover damages for an injury received by him on January 21, 1907, while employed by the company named as a miner. Aetitus and another were directed by the mine manager to cut recesses for timbers in an entryway to be converted into a stable, and while so engaged rock fell upon and injured the plaintiff. The mining law of Illinois, chapter 93, Hurd's R. S. 1909, requires a legally qualified mine examiner to inspect working places before men are set to work therein and to mark dangerous places. The mine manager, the assistant mine manager, and the mine examiner testified that they had each examined the working place in question and that it was not a dangerous place, so that no report of danger was made nor were any danger marks placed. The jury found on the evidence that the place was in fact dangerous and that it should have been so marked. Damages were awarded in the circuit court of Bureau County and affirmed on appeal to the appellate court. The company again appealed to the supreme court, which in turn affirmed the judgment for damages, June 29, 1910, though by a divided court. The point on which the court differed was as to the duty of the inspector and the employer's right to rest on a bona fide performance thereof. On this point Judge Hand, who delivered the opinion of the court, said in part:

The case was apparently tried by plaintiff in error on the theory that if the mine examiner and the mine manager looked the place over where the injury occurred and thought it was not dangerous, and their determination of that fact was made in good faith, the plaintiff in error would not be liable for the injury to defendant in error even though the jury were justified, from the evidence, in finding the place was dangerous and should have been marked as a dangerous place; in other words, that "good faith" on the part of the owner or operator of a coal mine in a suit for a willful violation of the mines and mining act is a defense. We do not think the owner or operator of a mine can excuse himself from liability growing out of a willful violation of the mines and mining act that is, from a conscious violation of the act-in failing to properly examine the mine and mark dangerous places therein which are known to him, on the ground that his examiner or manager in good faith thought the place was not dangerous. If this were the law, the right of recovery would not rest upon a conscious violation of the statute but upon the opinion of the owner or operator or his vice principal-— that is, his examiner or manager-as to whether the mine was safe or in a dangerous condition. It has been repeatedly held by this court that it is the duty of the owner or operator of a mine to have his mine examined and if it is in a dangerous condition to have the dangerous places designated by the statutory marks, and if he fails in either particular, with knowledge of its dangerous condition or with knowledge of facts from which he ought to know of its dangerous

condition, he is liable to a person in the mine under his employ who is injured as a result of his willful failure to obey the mandates of the statute. If the mine is in a dangerous condition, and the owner or operator has failed, with knowledge of its condition, to comply with the statute, he is liable, and he can not excuse himself on the ground that he had the mine examined and in good faith thought it was not dangerous. His liability does not rest upon the ground that in good faith or bad faith he thought there was no danger in the mine, but upon the ground that he has, knowing the facts which made the mine dangerous, failed to have the statutory marks properly placed in the mine. When the mine owner or operator is advised of the conditions in the mine, he must place in the mine, if it is dangerous, the statutory marks, and, if he fails to do so, he acts at his peril, and he can not excuse himself because he or his examiner or manager may think the mine safe. To so hold would be to permit the mine owner or operator, or his examiner or manager, to usurp the functions of the court and jury, and to pass upon a question which, in every case like this, is a matter of proof and is to be determined as a fact by the jury.

It is said by the plaintiff in error that the duties imposed upon the owner or operator of a mine by the mines and mining act in some instances are mandatory, while in others the performance of the duties imposed by that act upon the owner or operator involves the exercise of judgment, and that the performance of the latter class of duties, among which is that of discovering and marking dangerous places in the mine, involves only the exercise of good faith on the part of the owner or operator. We do not think the distinction pointed out a valid one, but are of the opinion this court is committed to a different doctrine. In Eldorado Coal and Coke Company v. Swan [227 Ill., 586, 81 N. E., 691], the claimed violation was the failure to maintain a light at the bottom of the shaft. The evidence showed there was a light at that place, but was conflicting as to the size and power of the light. The statute required a light sufficient to show the landing and surrounding objects distinctly, and the contention was made that the determination of the question whether the light was sufficient to show the landing and its surroundings distinctly involved the exercise of judgment, and, if the appellant company had attempted in good faith to comply with the requirements of the statute in that particular, it was relieved from liability. The court held otherwise. On page 590 of 227 Ill., page 692 of 81 N. E., it was said: "Appellant's most serious contention is that, even if it be conceded that the light was not fully up to the legal requirements in respect to the amount of light, still, when the evidence all shows that appellant had made an honest effort to comply with the statute and had partially failed, it can not be adjudged guilty of a willful violation of the law even if its partial failure arises from negligence on its part in the selection of the means or the method of their application with the view of complying with the statute. This argument is more ingenious than sound. The fallacy of the argument results from the assumed meaning of the word 'willful,' as it is used in the miners' act. If it were necessary to show an evil intent or any blamable conduct to establish the willfulness contemplated by this statute, then there would be more force in this contention. But no such construction of this statute

has ever been recognized by this court. On the contrary, it has often been held that an act consciously done that is, proceeding from the free and voluntary will-is willful, within the statute."

The dissenting opinion is as follows:

We do not agree with the majority that every failure on the part of a mine examiner to discover a dangerous condition in a mine is a willful violation of the statute, nor do we think that the cases cited in the majority opinion support that doctrine. A willful violation of this statute must necessarily be a conscious or knowing violation. To hold that a mine examiner is bound to discover a dangerous condition in the mine, even though by the honest application of every known means it is impossible to detect it at the time of the examination, and that a failure to discover such condition under such circumstances is willful, is to read into the statute that which is not there, and is to require of a mine operator that which is impossible for him to perform. This statute is not meant to make the operator an insurer against every accident in his mine which results from dangerous conditions, but only requires him to cause an examination to be made by an authorized examiner to make the required records of the examination, and to mark such places as are found, upon proper examination and the honest use of approved methods, to be dangerous. It is only a failure to make such an examination that constitutes a willful violation of the statute in respect to guarding against dangerous conditions in mines.

PICKETING POLICE POWER-MUNICIPAL REGULATIONS-Ex parte Williams, Supreme Court of California, 111 Pacific Reporter, page 1035.-J. J. Williams had been arrested for the violation of a municipal ordinance of the city of Los Angeles prohibiting certain acts, among them the picketing of places of employment for the purpose of intimidating, threatening, and coercing employees therein. Williams applied for a writ of habeas corpus, which was denied, as appears from the following opinion of Chief Justice Beatty, who spoke for the court:

This is a petition for a writ of habeas corpus which has been denied by the court.

The prisoner was arrested upon a complaint accusing him of violating a penal ordinance of the city of Los Angeles. The ordinance is quite comprehensive in its enumeration of the acts which it declares to be misdemeanors, and the prisoner was charged in the information with two distinct offenses, as defined by the ordinance: First, with "loitering" on a public street in front of the Fulton Engine Works, for the purpose of inducing and influencing persons to refrain from doing and performing services and labor at said works; second, with "picketing" in front of said works, for the purpose of intimidating, threatening, and coercing such persons.

It is argued in support of the petition that the ordinance is invalid. As to the provision concerning "picketing," for the purpose of intimidation, threatening, etc., I have no doubt that it is a valid

exercise of the powers of the local legislature. As to the provisions relating to "loitering," I have very serious doubts. They are so vaguely comprehensive that a person stopping on the street anywhere in the vicinity of a place of business for the purpose of dissuading an employee from continuing in his employment might be convicted of a misdemeanor.

I therefore concur in the order denying the writ, only upon the ground that the charge of picketing for the purpose of intimidation, etc., gives the police court jurisdiction to try the charge.


BOYCOTT-INJUNCTION-LABOR ORGANIZATIONS AS AS PARTIESINTERFERENCE WITH EMPLOYMENT-PROOF-Irving v. Joint District Council, United Brotherhood of Carpenters, etc., United States Circuit Court, Southern District of New York, 180 Federal Reporter, page 896.-Irving & Casson, partners operating a factory in the State of Massachusetts for the production of fine interior woodwork, had been made the objects of a movement by labor organizations of carpenters and joiners to influence them to run their factory as a closed shop. Letters had been written by officers of the unions to a number of persons with whom Irving & Casson were in business relations, actual or prospective, and instances were set out in the complainant's affidavits in which they had lost business because of notifications coming from the unions that they regarded the firm as unfair. Threats were also shown to have been made to take all union labor off contracts on which Irving & Casson were interested to the extent of furnishing some of the material. An injunction to restrain such acts was prayed for and granted, the case having been heard in July, 1910. As defendants there were named the unincorporated labor organization of carpenters and joiners and a number of officers and members named individually. The objection was raised that an organization of this sort could not be brought before the court, as to which Judge Ward, who delivered the opinion of the court, said:

The defendants object that the Joint District Council, being a voluntary unincorporated association, is not a citizen of any State, and therefore the court has no jurisdiction of it or of its members generally. I think this objection good. (Chapman v. Barney, 129 U. S. 677, 9 Sup. Ct. 426, 32 L. Ed. 800; Taylor v. Weir, 171 Fed. 636, 96 C. C. A. 438.) The bill may be dismissed as to the Joint District Council and its members generally, and stand as to the other defendants, in accordance with the practice indicated in Oxley Stave Co. v. Coopers' Union (C. C.) 72 Fed. 695, affirmed 83 Fed. 912, 28 C. C. A. 99. There are intimations that service upon some of the members of such associations may be good as against the association and the other members in United States v. Coal Dealers Ass'n (C. C.) 85 Fed. 252, American Steel and Wire Co. v. Wire Drawers' Unions 1 and 3 (C. C.) 90 Fed. 598, and Evenson v. Spaulding, 150 Fed. 517, 82 C. C. A. 263,

9 L. R.A. (N. S.) 904. If these cases mean more than that members of the associations not served may be held guilty of contempt if they knowingly assist in the violation of an injunction which has been granted, I am not disposed to follow them."

The question of sufficient proof of interference with business was raised by the defendants, the various instances of alleged loss of business on account of the action of the organization and its officers being declared not sufficiently precise and authentic. As to this Judge Ward said:

No doubt more and better evidence would be required on final hearing, but all that is needed upon a motion for a preliminary injunction is to satisfy that a cause of action exists and that irreparable injury will be done the complainants unless they are protected. In such a case a preliminary injunction ought to issue.

The court then took up the more general question of the right of the firm to an injunction, which he allowed, speaking as follows:

The right of workingmen to unite for their own protection is undoubted, and so is their right to strike peaceably because of grievances; but their right to combine for the purpose of calling out the workmen of other employers who have no grievances, or to threaten owners, builders, and architects that their contracts will be held up if they or any of their subcontractors use the complainants' trim, is quite another affair. To take the converse of the proposition: Will the defendants admit that employers may combine to prevent any employer from using union labor? May the employers agree not to sell to or contract with anyone who deals with an employer who uses union labor?

Either of these propositions is destructive of the right of free men to labor for or to employ the labor of anyone the laborer or the employer wishes. See the language of Justice Harlan in Adair v. United States, 208 U. S. 161, 174, 28 Sup. Ct. 277, 52 L. Ed. 436. If the struggle is persisted in between labor and capital to establish a contrary view, ultimately either the workmen or the employers will be reduced to a condition of involuntary servitude.

Whether the complainants do a large business, or, as the defendants allege, a small business, there is no doubt that the defendants by combination between themselves and with others have determined to force them against their will to maintain a closed shop in Massachusetts or go out of business, and to compel all persons in their employment, whether they will or not, to become members of the union or lose their employment. Of certain suggestions in the defendants' papers that the complainants are seeking to prevent the workingmen from organizing and striking and from communicating with each other, it may be said in the words of Brown, J., in the supreme court of Pennsylvania, in Purvis v. Local No. 500, United Brotherhood of Carpenters and Joiners, 214 Pa. 348, 63 Atl. 585:

"The zeal of counsel may account for, but can hardly excuse, the statement in appellants' paper book of the questions involved on this appeal. They are there stated to be: 'Is the dissemination by means of printed notices by a lawfully constituted lodge of union laborers

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